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Author: Gautam Bhatia
Publisher: Bloomsbury Publishing
ISBN: 1509967621
Category : Law
Languages : en
Pages : 287
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Book Description
This book provides a new conceptual model for considering constitutional rights from a comparative perspective. A prestigious club bars women from standing for executive positions. A homeowner refuses to rent their house to a person on grounds of their race. Each of these real-life cases involves the exercise of private power, which deprives individuals of their rights. Can these individuals invoke the Constitution in response? Horizontal Rights: An Institutional Approach brings a fresh perspective to these age-old, yet fraught issues. This book argues that constitutional scholarship and doctrine, across jurisdictions, has proceeded from an inarticulate premise called 'default verticality.' This is based on a set of underlying philosophical assumptions, which presumes that constitutional rights are presumptively applicable against the State, and need special justification to be applied against private parties. Departing from default verticality and its assumptions, this book argues that constitutional rights should apply horizontally between private parties where the existence of an economic, social, or cultural institution creates a difference in power between the parties, and allows one to violate the rights of the other. The institutional approach aims to be both theoretically convincing, as well as a providing a workable model for constitutional adjudication. It applies both to classic issues such as restrictive covenants, as well as cutting-edge contemporary legal problems around the regulation of platform work and the distribution of property upon divorce. This promises to be an exciting new contribution to the global conversation around constitutional rights and private power.
Author: Gautam Bhatia
Publisher: Bloomsbury Publishing
ISBN: 1509967621
Category : Law
Languages : en
Pages : 287
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Book Description
This book provides a new conceptual model for considering constitutional rights from a comparative perspective. A prestigious club bars women from standing for executive positions. A homeowner refuses to rent their house to a person on grounds of their race. Each of these real-life cases involves the exercise of private power, which deprives individuals of their rights. Can these individuals invoke the Constitution in response? Horizontal Rights: An Institutional Approach brings a fresh perspective to these age-old, yet fraught issues. This book argues that constitutional scholarship and doctrine, across jurisdictions, has proceeded from an inarticulate premise called 'default verticality.' This is based on a set of underlying philosophical assumptions, which presumes that constitutional rights are presumptively applicable against the State, and need special justification to be applied against private parties. Departing from default verticality and its assumptions, this book argues that constitutional rights should apply horizontally between private parties where the existence of an economic, social, or cultural institution creates a difference in power between the parties, and allows one to violate the rights of the other. The institutional approach aims to be both theoretically convincing, as well as a providing a workable model for constitutional adjudication. It applies both to classic issues such as restrictive covenants, as well as cutting-edge contemporary legal problems around the regulation of platform work and the distribution of property upon divorce. This promises to be an exciting new contribution to the global conversation around constitutional rights and private power.
Author: Eleni Frantziou
Publisher: Oxford University Press
ISBN: 0192574000
Category : Law
Languages : en
Pages : 351
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Book Description
This book analyses the horizontal effect of fundamental rights in the European Union, from a constitutional perspective. It advances two main arguments: First, it argues that the horizontal effect of fundamental rights (i.e. their application to disputes between private parties) cannot be usefully discussed based on the existing EU horizontality doctrine, which associates horizontality with the exercise of horizontal direct effect only. That doctrine is characterised by a series of overly technical rules as to how the latter may be produced and has a case-specific nature that lacks overall constitutional coherence. Secondly, the book argues that a substantive theory of horizontality is required in EU law and sketches its main parameters. In the fundamental rights context, horizontal effect has organisational implications for society, which go beyond specific intersubjective disputes. It is argued that its determination requires an explicit recognition of the public character of certain private platforms of will formation (e.g. the workplace) and a discussion of the role of fundamental rights therein. At the same time, a constitutionally adequate model of horizontality involves an acknowledgment of the supranational character of EU adjudication: the determination of horizontal applicability of a fundamental right within a type of private authority relationship falls upon the Court of Justice, but the precise manifestation of horizontal effect (e.g. direct, indirect or state-mediated effect) rests with national courts.
Author: Gautam Bhatia
Publisher:
ISBN: 9781509967643
Category : Constitutional law
Languages : en
Pages : 0
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Book Description
This book provides a new conceptual model for considering constitutional rights from a comparative perspective. A prestigious club bars women from standing for executive positions. A homeowner refuses to rent their house to a person on grounds of their race. Each of these real-life cases involves the exercise of private power, which deprives individuals of their rights. Can these individuals invoke the Constitution in response? Horizontal Rights: An Institutional Approach brings a fresh perspective to these age-old, yet fraught issues. This book argues that constitutional scholarship and doctrine, across jurisdictions, has proceeded from an inarticulate premise called 'default verticality.' This is based on a set of underlying philosophical assumptions, which presumes that constitutional rights are presumptively applicable against the State, and need special justification to be applied against private parties. Departing from default verticality and its assumptions, this book argues that constitutional rights should apply horizontally between private parties where the existence of an economic, social, or cultural institution creates a difference in power between the parties, and allows one to violate the rights of the other. The institutional approach aims to be both theoretically convincing, as well as a providing a workable model for constitutional adjudication. It applies both to classic issues such as restrictive covenants, as well as cutting-edge contemporary legal problems around the regulation of platform work and the distribution of property upon divorce. This promises to be an exciting new contribution to the global conversation around constitutional rights and private power.
Author: Johan van der Walt
Publisher: Walter de Gruyter GmbH & Co KG
ISBN: 3110391708
Category : Law
Languages : en
Pages : 379
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Book Description
That the recent turn in European Constitutional Review has effectively brought about a revolution in European law has been observed before. At issue are two major developments in European judicial review. On the one hand, the European Court of Human Rights has been collapsing traditional boundaries between constitutional law and private law with a series of decisions that effectively recognized the "horizontal" effect of Convention rights in the private sphere. On the other hand, the European Court of Justice has also given horizontal effect to fundamental liberties embodied in the Treaty on the Function of the European Union in a number of recent cases in a way that puts "established" boundaries between Member State and Union competences in question. This book takes issue with these developments by bringing to the fore a key issue that the horizontality effect debate has hitherto largely overlooked, namely, the question of sovereignty. It shows with detailed references to especially the American debate on state action and the German debate on Drittwirkung that horizontal effect cannot be understood consistently without coming to grips with the conceptions of state sovereignty that inform different approaches to horizontal effect.
Author: Cristina Izquierdo-Sans
Publisher: Springer Nature
ISBN: 303072798X
Category : Law
Languages : en
Pages : 298
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Book Description
This book presents a comprehensive review of fundamental rights issues that are currently in the spotlight. The first part explores why the question of whether or not fundamental rights have horizontal effect is a topic of endless debate. The second part focuses on human rights and the rule of law. It begins by arguing that the hitherto valid model of the rule of law is now outdated, and then goes on to outline the importance of the judicial dimension in countering threats to the independence of the judiciary. Lastly, the third part addresses a classic issue in the field of human rights: states’ margin of appreciation, highlighting two aspects: (i) the elements used by the ECJ to determine the scope of the margin of appreciation, which varies depending on the subject matter, the nature of the right in question, as well as the severity and the purpose of the interference; and (ii) the margin of appreciation enjoyed by national courts when interpreting the law. Exploring current issues concerning a topic of eternal interest, the book will appeal to scholars and practitioners alike. Written by formidable intellectual talents, committed to the study of fundamental rights, it rigorously analyses the most recent judgments of both the ECJ and the ECHR.
Author: Eleni Frantziou
Publisher: Oxford Studies in European Law
ISBN: 9780198837152
Category : Law
Languages : en
Pages : 0
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Book Description
This book analyses the horizontal effect of fundamental rights in the European Union, from a constitutional perspective. It advances two main arguments: First, it argues that the horizontal effect of fundamental rights (i.e. their application to disputes between private parties) cannot be usefully discussed based on the existing EU horizontality doctrine, which associates horizontality with the exercise of horizontal direct effect only. That doctrine is characterised by a series of overly technical rules as to how the latter may be produced and has a case-specific nature that lacks overall constitutional coherence. Secondly, the book argues that a substantive theory of horizontality is required in EU law and sketches its main parameters. In the fundamental rights context, horizontal effect has organisational implications for society, which go beyond specific intersubjective disputes. It is argued that its determination requires an explicit recognition of the public character of certain private platforms of will formation (e.g. the workplace) and a discussion of the role of fundamental rights therein. At the same time, a constitutionally adequate model of horizontality involves an acknowledgment of the supranational character of EU adjudication: the determination of horizontal applicability of a fundamental right within a type of private authority relationship falls upon the Court of Justice, but the precise manifestation of horizontal effect (e.g. direct, indirect or state-mediated effect) rests with national courts.
Author: Christina Rose Bambrick
Publisher:
ISBN:
Category :
Languages : en
Pages : 564
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Book Description
Though jurists have traditionally understood the constitution as a separate kind of law that obligates only the state, courts increasingly understand constitutions as creating obligations for private actors such as private individuals, businesses, schools, and hospitals. The practice of applying rights "horizontally" to private actors raises a range of questions from the theoretical to the practical and from the jurisprudential to the political. I argue that we better understand the practical and political implications of such "horizontal rights" by studying them through the lens of republican political theory. Specifically, republicanism grounds (and foregrounds) the solidarity between citizens and the uniformity between public and private spheres that horizontality ascertains. Applying this framework, I examine constitutional debates, court cases, and political histories to show how courts have applied rights horizontally across time, place, and subject-matter. By situating my study in the larger historical-political context of each place, I examine the conditions that surround the horizontal application of constitutional rights to individual citizens and other private actors. Chapter I lays out this theoretical grounding, drawing on classical and neo-republican theory to demonstrate the explanatory power of this framework. In the next two chapters, I examine the development of horizontal rights in national contexts, contrasting efforts to bring solidarity to the private sphere in India and the United States (Chapter II), and comparing attempts to establish uniform standards to govern public and private spheres in Germany and South Africa (Chapter III). Chapter IV extends this discussion to the European Union, considering how the republican framework for horizontal effect accounts for duties and standards occurring across national boundaries. In accounting for the practical power of courts to determine the rights and duties of private entities, this project contributes to our knowledge of how constitutional politics shape conceptions of public and private in our increasingly pluralistic world. This research engages and contributes to law and courts scholarship in political science. However, its findings will be of interest to all scholars interested the relationship between the state and civil society
Author: Jud Mathews
Publisher: Oxford University Press
ISBN: 0190682930
Category : Law
Languages : en
Pages : 265
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Book Description
Constitutional rights protect individuals against government overreaching, but that is not all they do. In different ways and to different degrees, constitutional rights also regulate legal relations among private parties in most legal systems. Rights can have not only a vertical effect, within the hierarchical relationship between citizen and state, but also a horizontal one, on the citizen-to-citizen relationships otherwise governed by private law. In every constitutional system with judicially enforceable constitutional rights, courts must make choices about whether, when, and how to give those rights horizontal effect. This book is about how different courts make those choices, and about the consequences that they have. The doctrines that courts build to manage the horizontal effect of rights speak to the most fundamental issues that constitutional systems address, about the nature of rights and of constitutionalism itself. These doctrines can also entrench or enhance judicial power, but in very different ways depending on the legal system. This book offers three case studies, of Germany, the United States, and Canada. For each, it offers a detailed account of the horizontal effect jurisprudence of its apex court-not in isolation, but as a central feature of a broader account of that country's constitutional development. The case studies show how the choices courts make about horizontal rights reflect existing normative and political realities and, over time, help to shape new ones.
Author: Dan Friedmann
Publisher: Hart Publishing
ISBN: 1841132136
Category : Law
Languages : en
Pages : 416
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Book Description
In this book the expansion of human right legislation in national and international law is examined from theoretical and comparative perspectives.
Author: Abhi Nandan Malik
Publisher:
ISBN: 9780494402597
Category : Civil rights
Languages : en
Pages : 69
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Book Description
This paper is concerned with the horizontal application of constitutional guarantees, that is, application of constitutional guarantees to private law. It outlines and analyses the approaches taken in India, Germany, Canada, United States and South Africa and argues against approaches to horizontalisation that disregard the public/private divide. The argument is based on zones of private autonomy and the distinct nature of the practice of private law; arguing that the practice itself is categorically distinct from that of public law and operates according to its own rules which are necessary for the practice to exist. Accordingly, it argues that constitutional values may help develop private law; however, the development must be in accordance with the nature of the practice. Use is made of H.L.A. Hart's criticism of Bentham's imperative theory of law to distinguish between private action and State action; and of Professor Ernest J. Weinrib's work to describe the essential nature of private law practices.
